Personal Injury

Long-term disability insurance part 3: the case study

By Kirsten McMahon, Managing Editor

In the final instalment of a three-part series on LTD claims, Toronto personal injury lawyer Andrew M. Lee discusses creative ways to overcome a denial of coverage.

If you’re a claimant going up against an insurance company after a denial of long-term disability (LTD) benefits, it’s crucial to seek legal advice to build your case, Toronto personal injury lawyer Andrew M. Lee tells AdvocateDaily.com.

“Insurance companies are not in the business to give away money,” says Lee, principal of Lee & Associates. “It can take some creativity and thinking outside of the box to successfully resolve these types of cases.”

He recalls one file where a 40-year-old client was injured in an all-terrain vehicle accident and could no longer continue working as a service advisor at a high-end car dealership.

“The issue for my client was whether he was disabled from his own occupation as a service advisor for the first 24 months,” Lee says. “After that, the issue became whether he was disabled from any occupation.”

In the man’s case, he was under the continuous care of his doctor and was diligent in attending his appointments and rehabilitation. His family doctor sought numerous referrals including to an orthopedic specialist, neurologist, and rheumatologist to get opinions.

“He was trying to mitigate his damages and rehabilitate himself in order to get back to work,” Lee says.

His workplace LTD policy allowed him benefits capped at 65 per cent of his pre-disability earnings of about $5,000 a month — which would have entitled him to around $3,300 until age 65.

“The big issue in my client’s case was whether he was disabled from his job as a car service advisor. One of the obstacles we had to overcome was the perception that as an advisor he wasn’t doing any physically demanding work,” Lee notes.

Although the accident was quite dramatic, he says the man didn’t suffer any serious orthopedic or neurological injuries.

“This matter was all about trying to prove that he was disabled and not able to fulfil the requirements of this job. One of the things that we did is conduct a worksite assessment and contacted his employer to get more details of what the job entailed. This way we were able to demonstrate that the role wasn’t restricted to sitting at a desk and answering the phone all day long,” Lee says.

At this particular dealership, Lee says the man did some tasks over and above the usual activities in front of a computer.

“We had to bring that information to light and get evidence as to the nature of his role. In addition to the worksite assessment, we did a functional abilities evaluation to measure his range of motion and the physical demands of the job. We then gave all of this information to an orthopedic expert to determine whether the client could do the job that he did before the accident,” he says.

With the expert evidence, Lee says he demonstrated that the job demands far exceeded his client’s physical limitations and that he met the ‘own occupation’ test. However, he then had to meet a more onerous test to show he had a complete disability from 'any occupation.'

“We did this by looking at his previous job experience, reviewing his resume, and getting his prior work records where necessary. We sent him to a vocational assessor to get an opinion as to what this man could do and couldn’t do based on his training, education, experience,” he says.

Lee says a transferable skills analysis was conducted and, ultimately it was the vocational expert’s opinion that his client didn’t have the capability to do any job that he was suited to do based on his training, education, and experience.

“We were able to successfully resolve the matter before trial, and the client received benefits well past the 24-month mark,” he says.

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